[LOGO]
April 8, 1996
Xxxxx Broadcasting Corporation
and
WEAU License, Inc.
0000 Xxxxx Xxxxxxxx Xxx
Xxx Xxxxxx, Xxxxxxxxx 00000
RE: WEAU-TV (EAU CLAIRE, WISCONSIN)
Gentlemen:
The following shall comprise the agreement between Xxxxx Broadcasting
Corporation ("Xxxxx"), as owner and operator of television broadcast station
WEAU-TV ("WEAU-TV") and WEAU License, Inc., licensee of WEAU-TV, for the
affiliation of WEAU-TV (Xxxxx, WEAU License, Inc. and WEAU-TV collectively
herein called "Station") with the NBC Television Network (herein called
"NBC") and shall supersede and replace our prior agreement dated April 1,
1990, except for the most recent amendment with respect to network
non-duplication protection under Federal Communications Commission ("FCC")
Rules Section 76.92.
1. TERM. This Agreement shall be deemed effective as of 3:00 A.M., New
York City time on the 1st day of January, 1996 and, unless sooner terminated
as provided in this Agreement, it shall remain in effect for a period of ten
(10) years thereafter. It shall then be renewed on the same terms and
conditions for a further period of five (5) years and for successive further
periods of five (5) years each, unless and until either party shall, at least
twelve (12) months prior to the expiration of the then current term, give
the other party written notice that it does not desire to have this Agreement
renewed for a further period.
2. NBC PROGRAMMING.
(a) NBC shall deliver to Station for free, over-the-air television
broadcasting all programming which NBC makes available for broadcasting in
the community to which Station is presently licensed by the FCC, except as
otherwise expressly provided herein.
(b) NBC commits to supply sufficient programming throughout the
term of this Agreement for the hours presently programmed by it (the
"Programmed Time Periods"), which Programmed Time Periods are as follows (the
specified times are all local time in Station's community of license):
Prime Time: Monday thru Saturday - 7:00-10:00 P.M.
Sunday - 6:00-10:00 P.M.
Late Night: Monday thru Thursday - 10:35 P.M.-1:05 A.M.
Friday - 10:35 P.M. - 1:35 A.M.
Saturday - 10:30 P.M.-12:00 Midnight
News: Monday thru Friday - 6:00-6:30 A.M.,
7:00-9:00 A.M. and 5:30-6:00 P.M.
Saturday - 7:00-9:00 A.M. and 5:30-
6:00 P.M.
Sunday - 7:00-9:00 A.M. and 5:30-6:00 P.M.
Daytime: Monday thru Friday - 11:00 A.M.-12:00 Noon
and 12:30-2:30 P.M.
Saturday - 9:00-11:30 A.M.
The selection, scheduling, substitution and withdrawal of any program
or portion thereof delivered to Station during the Programmed Time Periods shall
at all times remain within the sole discretion and control of NBC. The
parties acknowledge that local and network programming needs may change
during the term of this Agreement, and each party agrees throughout the term
to negotiate in good faith with the other party any proposed modification of
the Programmed Time Periods.
(c) In addition to the programming supplied pursuant to Paragraph
2(b) above, NBC shall offer Station throughout the term of this Agreement a
variety of sports, special events and overnight news programming for
television broadcast at times other than the Programmed Time Periods.
Station shall have the right of first refusal with respect to any such
programming good for seventy-two (72) hours as against any other television
station located in Station's community of license or any television program
transmission service furnishing a television signal to Station's community of
license, including, but not limited to, any community antennae
television system, subscription television service, multipoint distribution
system and satellite transmission service. Station shall notify NBC of its
acceptance or rejection of NBC's offer of such programming as promptly as
possible. Station's acceptance of NBC's offer shall constitute Station's
agreement to broadcast such programming in accordance with the terms of such
offer and this Agreement. Notwithstanding any other provision in this
Agreement, no pre-existing acceptance of NBC programming shall be superseded
or otherwise affected by this Agreement, and those acceptances shall remain
in full force and effect. With respect to NBC programs outside the
Programmed Time Periods (either offered or already contracted for pursuant to
this Agreement), nothing herein contained shall prevent or hinder NBC from
(i) substituting one or more sponsored or sustaining programs, in which event
NBC shall offer such substituted program or programs to Station in
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accordance with the provisions of this Paragraph 2(c), or (ii) canceling one
or more such NBC programs; provided, however, that NBC shall exercise all
reasonable efforts to give Station at least three (3) weeks prior written
notice of such substitution or cancellation. Station shall not be obligated
to broadcast, and NBC shall not be obligated to continue to deliver,
subsequent to the termination of this Agreement, any programs which NBC may
have offered and which Station may have accepted during the term hereof.
3. STATION CARRIAGE IN PROGRAMMED TIME PERIODS.
(a) Station agrees that, subject only to the preemption rights set
forth herein, including Station's unqualified right to preempt for Station's
live coverage of local news events, Station shall broadcast over Station's
facilities all NBC programming supplied to Station for broadcast in the
Programmed Time Periods on the dates and at the times the programs are
scheduled by NBC, except to the extent that Station is actually broadcasting
programming pursuant to (and within the specified limits of) a commitment
contemplated by Paragraph 3(b) below. As used herein, the "live coverage of
local news events" with respect to Station's preemption rights shall in no
event refer to the addition of scheduled local news programs as part of
Station's regular continuing program schedule.
(b) As an inducement for NBC to enter into this Agreement, Station
covenants, represents and warrants to NBC that during any Broadcast Year (as
hereinafter defined) during the term hereof, Station shall preempt no more
than five (5) hours in the aggregate of NBC programs during the Prime Time
Programmed Time Period for any reason other than for the live coverage of
news events (the "Prime Time Preemption Amount"). For the purposes of this
Agreement, a "Broadcast Year" shall mean a twelve (12) month period during
the term hereof which commences on any September 1 during the term hereof and
which ends on August 31 of the immediately following year. Station hereby
confirms that its rights and obligations under this Paragraph 3(b) are
consistent with the provisions of Paragraph 4(c) below.
(c) The Station hereby agrees to accept and clear all sports
programming offered to the Station by NBC outside the Programmed Time Periods
("NBC Sports Programming"), except for NBC sports programming which directly
conflicts with Station's coverage of sports events and special events of
particular local interest (collectively, such coverage of such sports events
and special events are referred to below as "Special Programs"). Station
agrees not to broadcast more than twenty-five (25) hours of Special Programs
outside the Programmed Time Periods in the aggregate during any Broadcast
Year during the term of this Agreement which would conflict with NBC Sports
Programming outside the Programmed Time Periods (the "Sports Preemption
Amount").
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(d) Notwithstanding the foregoing provisions of subparagraphs (b)
and (c) above and without limiting the provisions thereof, Station agrees
that in any one month period during a Broadcast Year, Station's preemptions
of NBC Prime Time programs and NBC Sports Programming shall not exceed 25%
of, respectively, the Prime Time Preemption Amount and the Sports Preemption
Amount, unless otherwise consistent with Station's programming practice. In
addition, Station agrees that in no event shall Station preempt NBC
programming for any programming offered or syndicated by any other broadcast
television network; PROVIDED that such agreement by Station shall only be
deemed in effect to the extent consistent with applicable law.
(e) Station shall initially be obligated to broadcast only three
(3) hours of XXX Xxxxxxx Programming, Monday through Friday; PROVIDED, that
Station shall clear a fourth hour of XXX Xxxxxxx programming upon the
expiration or termination (without giving effect to any renewal term) of any
of Station's existing contractual commitments for non-NBC programming
currently broadcast Monday through Friday, during the hours of 9:00 A.M. -
4:00 P.M. (the "Fourth Daytime Hour"). The Fourth Daytime Hour shall be
cleared by Station during the hours 9:00 A.M. - 4:00 P.M., Monday through
Friday and shall, upon such clearance by Station, become part of the
Programmed Time Periods for purposes of Paragraphs 2(a) and 2(b) hereof.
4. PREEMPTIONS.
(a) In the event that Station, for any reason, fails to broadcast or
advises NBC that it will not broadcast any NBC programming as provided
herein, then, in each case, Station, upon notice from NBC to Station, shall
broadcast such omitted programming and the commercial announcements
contained therein (or any replacement programming and the commercial
announcements contained therein) during a time period or periods which the
parties shall promptly and mutually agree upon and which shall, to the extent
possible, be of a quality and rating value comparable to that of the time
period or periods at which such omitted programming was not broadcast as
provided herein. In the event that the parties do not promptly agree upon a
time period or periods as provided in the preceding sentence, then, without
limitation to any other rights of NBC under this Agreement or otherwise, NBC
shall have the right to license the broadcast rights to the applicable
omitted programming (or replacement programming) to another television
station located in Station's community of license.
(b) In the event that Station preempts or fails to clear or
broadcast any NBC programming as provided herein for any reason other than:
(i) the live coverage of local news events, (ii) as permitted by Paragraphs
3(b), 3(c) or 3(d) above, (iii) force majeure as provided for in Paragraph 12
below, or (iv) because: (A) the programming is delivered in a form which does
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not meet accepted standards of good engineering practice; (B) the programming
does not comply with the rules and regulations of the FCC; or (C) Station
reasonably believes that such programming would not meet prevailing
contemporary standards of good taste in its community of license, then,
without limiting any other rights of NBC under this Agreement or otherwise,
upon NBC's request, Station shall pay NBC, or NBC may deduct or offset from
any amounts payable to Station hereunder or under any other agreement between
Station and NBC (or an entity controlling, controlled by or under common
control with NBC), an amount equivalent to NBC's loss in net advertising
revenues attributable to the failure of Station to broadcast such program in
Station's market as scheduled by NBC, which amount shall be calculated in
accordance with Exhibit A hereto. Without limiting or affecting any other
determination of a material breach hereunder, any failure by Station to pay
any amount due under this Paragraph 4(b) shall be deemed a material breach of
this Agreement. In the event of Station's material breach of this Agreement,
without limiting any other of NBC's rights of NBC under this Agreement or
otherwise, NBC shall have the option, exercisable in its sole discretion upon
thirty (30) days' written notice to Station, to either (x) terminate
Station's right to broadcast any one or more series or other NBC programs, as
NBC shall elect, and, to the extent and for the period(s) that NBC elects,
thereafter license the broadcast rights to such series or other NBC
program(s) to any other television station or stations located in Station's
community of license or (y) unless the breach is cured within such thirty
(30) day period, terminate this Agreement. Station acknowledges that NBC
programming previously broadcast by Station has been consistent with the
standards set forth in the foregoing clause (C); Station also agrees that
Station's reasonable belief that an NBC program does not meet such standards
will be based on a substantial difference in such program's style and content
from NBC programs previously broadcast by Station, unless the relevant
standards in the Station's community of license have changed.
(c) With respect to programs offered or already contracted for
pursuant to this Agreement, nothing herein contained shall be construed to
prevent or hinder Station from: (i) rejecting or refusing any NBC program
which Station reasonably believes to be unsatisfactory or unsuitable or
contrary to the public interest, or (ii) substituting a program which, in
Station's opinion, is of greater local or national importance; provided,
however, that Station shall give NBC written notice of each such rejection,
refusal or substitution, and the reason therefor, at least three (3) weeks in
advance of the scheduled broadcast, or as soon thereafter as possible
(including an explanation of the cause for any lesser notice). Station
confirms that its determination that a substitute program is of greater local
or national importance shall be based on Station's reasonable good faith
judgment.
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5. STATION COMPENSATION. In further consideration of Station's
performance of its obligations under this Agreement NBC shall compensate
Station as follows:
(a) (i) NBC shall pay Station for Station's broadcast of each
network sponsored program or portion thereof (except those specified in
Paragraph 5(b) below) which is broadcast during the Live Time Period
therefor the amount resulting from multiplying the following:
(A) Station's Network Station Rate, which is $901; by
(B) The percentage set forth in the compensation matrix table
attached hereto as Exhibit B (the "Compensation Table") opposite
the applicable time period; by
(C) The fraction of an hour substantially occupied by such program
or portion thereof; by
(D) The fraction of the aggregate length of all Commercial
Availabilities during such program or portion thereof occupied
by Network Commercial Announcements.
As used herein, "Live Time Period" shall mean the time period or
periods as specified by NBC for the broadcast of a program by Station;
"Commercial Availability" shall mean a period of time made available by
NBC during a network sponsored program for one or more Network Commercial
Announcements; and "Network Commercial Announcement" shall mean a
commercial announcement broadcast over Station during a Commercial
Availability and paid for by or on behalf of one or more of NBC's network
advertisers, not including, however, announcements consisting of
billboards, credits, public service announcements, promotional
announcements and announcements required by law.
(ii) For each network sponsored program or portion thereof
(except those specified in Paragraph 5(b) below) which is broadcast by
Station during a time period other than the Live Time Period therefor, NBC
reserves the right, in its sole discretion, to withhold payment of
compensation for such program. If NBC does not withhold payment of
compensation for such program, NBC shall pay Station as if Station had
broadcast the program or portion thereof during such Live Time Period,
except that if the percentage set forth in the Compensation Table opposite
the time period during which Station broadcasts the program or portion
thereof is less than that set forth opposite such Live Time Period, NBC
shall pay Station on the basis of the time period during which Station
broadcasts the program or portion thereof.
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(b) NBC shall pay Station such amounts as NBC and Station shall
agree upon for all network sponsored programs broadcast by Station consisting
of:
(i) Sports programs;
(ii) Special events programs, and
(iii) Programs for which NBC specifies a Live Time Period
which straddles any of the time period categories in the Compensation
Table.
(c) (i) On or about the fifteenth day of the last month of each
calendar quarter during the term hereof, subject to the timely receipt of
reports requested under Paragraph 10 below, NBC shall pay Station, by
electronic transfer or such other means as NBC shall determine, an estimate
of the amounts due hereunder for such calendar quarter. NBC shall make the
appropriate adjustment for the payment actually due for such calendar
quarter in the payment of the estimated amount due for the next calendar
quarter. NBC shall calculate the amounts due hereunder on a weekly basis
and shall report such amounts to Station within a reasonable period of
time after the close of each month during the term.
(ii) From the amounts otherwise payable to Station hereunder,
NBC shall deduct for each week during each calendar quarter of the term
hereof a sum equal to 217% of Station's Network Station Rate provided in
subparagraph 5(a)(i)(A) above (the "Waiver Percentage"). This deduction
shall be calculated on a weekly basis, with 4.2857 as the agreed number of
weeks per month, and shall be reported to Station with reports due under
subparagraph 5(c)(i) above. NBC shall make other deductions from the
amounts otherwise payable to Station hereunder for additional services made
available by NBC and utilized by Station such as, but not limited to,
NBC News Channel.
(d) (i) Subject to the limitations set forth below, NBC reserves
the right as part of a general rate revision to reevaluate and change at
any time: (A) the percentages set forth in the Compensation Table, or
(B) the Waiver Percentage set forth in subparagraph 5(c)(ii) above,
by giving written notice to Station at least thirty (30) days prior to
the effective date of such change. Notwithstanding the foregoing, NBC
agrees that: (X) the Compensation Table attached hereto as Exhibit B
shall be modified during the term of this Agreement only as mutually
agreed to by NBC and Station or as may be recommended by the NBC
Affiliate Board; and (Y) NBC may increase the Waiver Percentage only
by reason of an increase in NBC's technical costs of delivering
programming to the NBC Television Network; PROVIDED that any
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such increase in the Waiver Percentage shall be subject to review by the
NBC Affiliate Board.
(ii) Notwithstanding anything contained in subparagraph 5(d)(i)
to the contrary, the parties acknowledge that the payment of compensation
to Station hereunder is in consideration of certain commitments by Station,
including commitments regarding Station's local news program schedule and
promotion of NBC programming as respectively set forth in Exhibits C and D
attached hereto, which Exhibits are incorporated herein by this reference.
In the event that Station (A) materially reduces its local news program
schedule as set forth in Exhibit C or (B) does not fulfill such commitments
as are set forth in Exhibit D in all years during the term of this
Agreement, NBC reserves the right to decrease Station's Network Station
Rate by notifying Station in writing at least ninety (90) days prior to the
effective date of such change.
6. ADDITIONAL CONSIDERATION. In consideration of Station entering into
this Agreement and its performance of each of its obligations under this
Agreement as set forth herein, NBC agrees to pay to Station the additional
amounts (the "Additional Payments") set forth on Exhibit E hereto, subject
to the provisions thereof.
7. LOCAL COMMERCIAL ANNOUNCEMENTS. Subject to the following sentence,
NBC agrees that during each quarter during the term of this Agreement, the
average weekly number of minutes available for Station's local commercial
announcements in and adjacent to regularly scheduled NBC programming in each
daypart (with pro-rated adjustments for national sports programming, special
news coverage or other special events) shall not be less than ninety-five
percent (95%) of the average weekly number of minutes for the applicable
daypart during the 1993-94 Broadcast Year as set forth in Exhibit F attached
hereto (except if the reduction is due to a change in applicable government
regulations). In the event of a reduction in the average weekly number of
minutes available for Station's local commercial announcements in and
adjacent to regularly scheduled NBC programming which causes NBC not to be in
compliance with the foregoing provision, NBC agrees to offset the effects of
such reduction by providing Station with a comparable economic benefit, which
benefit may take the form of local coverage of NBC promotional announcements,
an increase in the amount of Station's preemptions permitted under Paragraphs
3(b), 3(c) or 3(d) hereof, or other form of benefit. The foregoing provisions
of this Paragraph 7 are not intended to facilitate any disproportionate
change by NBC in the allocation of the number of minutes available for
Station's local commercial announcements in and adjacent to regularly
scheduled NBC programming among different time periods in any daypart, if
such change is solely for NBC's economic benefit.
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8. DELIVERY. NBC shall transmit the programming hereunder by satellite
and shall notify Station as to both the satellite and transponder being used
for such transmission, and the programming shall be deemed delivered to
Station when transmitted to the satellite. Where, in the opinion of NBC, it
is impractical or undesirable to furnish a program over satellite facilities,
NBC may deliver the program to Station in any other manner, including but not
limited to, in the form of motion picture film, video tape or other recorded
version, postage prepaid, in sufficient time for Station to broadcast the
program at the time scheduled. Such recordings shall be used only for a
single television broadcast over Station, and Station shall comply with all
NBC instructions concerning the disposition to be made of each such recording
received by Station hereunder.
9. CONDITIONS OF STATION'S BROADCAST. Station's broadcast of NBC
programming shall be subject to the following terms and conditions:
(a) Station shall not make any deletions from, or additions or
modifications to, any NBC program furnished to Station hereunder or any
commercial, NBC identification, program promotional or production credit
announcements or other interstitial material contained therein, nor broadcast
any commercial or other announcements (except emergency bulletins) during any
such program, without NBC's prior written authorization. Station may,
however, delete announcements promoting any NBC program which is not to be
broadcast by Station, provided that such deletion shall be permitted only in
the event and to the extent that Station substitutes for any such deleted
promotional announcements other announcements promoting NBC programs to be
broadcast by Station; PROVIDED that Station shall be permitted to substitute
for any such deleted promotional announcements, local public service
announcements or promotion announcements for Station's local programming.
(b) For purpose of identification of Station with the NBC programs,
and until written notice to the contrary is given by NBC, Station may
superimpose on various Entertainment programs, where designated by NBC, a
single line of type, not to exceed fifty (50) video lines in height and
situated in the lower eighth raster of the video screen, which single line
shall include (and be limited to) Station's call letters, community of
license or home market, channel number, and the NBC logo. No other addition
to any Entertainment program is contemplated by this consent, and the
authorization contained herein specifically excludes and prohibits any
addition whatsoever to News and Sports programs, except identification of
Station as provided in the preceding sentence as required by the FCC.
(c) The placement and duration of station-break periods provided
for locally originated announcements between NBC programs or segments thereof
shall be designated by NBC. Station
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shall broadcast each NBC program delivered to Station hereunder from the
commencement of network origination until the commencement of the terminal
station break.
(d) In the event of the confirmation by NBC of any violation by
Station of any of the provisions of this Paragraph 9, NBC may, in its
reasonable discretion, withhold an amount of compensation otherwise due
Station under Paragraph 5 above which is appropriate in view of the nature of
the specific violation, it being understood that the amount withheld for any
violation shall not exceed the total compensation due Station for the week in
which such violation occurs. Nothing contained in this Paragraph 9(d) shall
limit the rights of Station under Paragraph 4(c) above.
10. STATION REPORTS. Station shall submit to NBC in writing, upon
forms provided by NBC, such reports as NBC may request covering the broadcast
by Station of programs furnished to Station hereunder.
11. MUSIC PERFORMANCE RIGHTS. All programs delivered to Station
pursuant to this Agreement shall be furnished with all music performance
rights necessary for broadcast by Station included. Station shall have no
responsibility for obtaining such rights from ASCAP, BMI or other music
licensing societies insofar as the programs delivered by NBC to Station for
broadcasting are concerned. As used in this paragraph, "programs" shall
include, but shall not be limited to, program and promotional material and
commercial and public service announcements furnished by NBC. Station shall
be responsible for all music license requirements for any commercial and
public service announcements or other material inserted by Station within or
adjacent to the programs as permitted under the terms of this Agreement,
except for cut-ins produced by or on behalf of NBC and inserted by Station at
NBC's direction.
12. FORCE MAJEURE. Neither Station nor NBC shall incur any liability
hereunder because of NBC's failure to deliver, or the failure of Station to
broadcast, any or all programs due to failure of facilities, labor disputes,
government regulations or causes beyond the reasonable control of the party
so failing to deliver or to broadcast. Without limiting the generality of
the foregoing, NBC's failure to deliver a program for any of the following
reasons shall be deemed to be for causes beyond NBC's reasonable control:
cancellation of a program because of the death, illness or refusal to appear
or perform of a star or principal performer thereon, or because of such
person's failure to conduct himself or herself with due regard to social
conventions and public morals and decency, or because of such person's
commission of any act or involvement in any situation or occurrence tending
to degrade him or her in society, or bringing him or her into public
disrepute, contempt, scandal or ridicule,
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or tending to shock, insult or offend the community, or tending to reflect
unfavorably upon NBC or the program sponsor.
13. INDEMNIFICATION. NBC shall indemnify, defend and hold Station, its
parent, subsidiary and affiliated companies, and their respective directors,
officers and employees, harmless from and against all claims, damages,
liabilities, costs and expenses (including reasonable attorneys' fees)
arising out of the use by Station, in accordance with this Agreement, of any
program or other material as furnished by NBC hereunder, provided that
Station promptly notifies NBC of any claim or litigation to which this
indemnity shall apply, and that Station cooperates fully with NBC in the
defense or settlement of such claim or litigation. Similarly, Station shall
indemnify, defend and hold NBC, its parent, subsidiary and affiliated
companies, and their respective directors, officers and employees, harmless
with respect to material added to or deleted from any program by Station,
except for cut-ins produced by or on behalf of NBC and inserted by Station at
NBC's direction. These indemnities shall not apply to litigation expenses,
including attorneys' fees, which the indemnified party elects to incur on its
own behalf. Except as otherwise provided herein, neither Station nor NBC
shall have any rights against the other for claims by third persons, or for
the non-operation of facilities or the non-furnishing of programs for
broadcasting, if such non-operation or non-furnishing is due to failure of
equipment, actions or claims by any third person, labor disputes, or any
cause beyond such party's reasonable control.
14. STATION'S RIGHT OF FIRST NEGOTIATION. Throughout the term of this
Agreement, NBC shall give Station prompt notice of any determination by NBC
to engage in new over-the-air broadcast ventures within Station's community
of license (whether or not involving the transmission of television programs,
but excluding any acquisition of an ownership interest in any broadcast
television station)(a "Broadcast Venture"). NBC shall negotiate exclusively
with Station in good faith, for a period of time following such notice to
Station as shall be determined by NBC to be appropriate to the circumstances
and as shall be specified in such notice, with respect to Station's
participation on a financial and/or operational basis in any such Broadcast
Venture within Station's community of license before NBC may enter into any
such negotiations with a Third Party (as defined below) within such community
of license. "Third Party" shall mean any person or entity other than an NBC
Party; "NBC Party" shall mean any of NBC, National Broadcasting Company, Inc.
or their respective parent, subsidiary, affiliated, related or successor
entities.
15. CHANGE IN OPERATIONS. Station represents and warrants that it
holds a valid license granted by the FCC to operate the Station as a
television broadcast station; such representation and warranty shall
constitute a continuing representation and
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warranty by Station. In the event that Station's transmitter location,
power, frequency, programming format or hours of operation are materially
changed at any time so that Station is of less value to NBC as a broadcaster
of NBC programming than at the date of this Agreement, then NBC shall have
the right to terminate this Agreement upon thirty (30) days prior written
notice to Station.
16. ASSIGNMENT.
(a) This Agreement shall not be assigned without the prior written
consent of NBC, and any permitted assignment shall not relieve Station of its
obligations hereunder. Any purported assignment by Station without such
consent shall be null and void and not enforceable against NBC.
(b) Station agrees to include as a condition of any proposed
assignment, sale or transfer of ownership or control of Station (including,
without limitation, any assignment or transfer referred to in Paragraph 16(c)
below other than a "short-form" assignment) a contractually binding provision
that the assignee or transferee shall assume and become bound by this
Agreement for (i) the remainder of the then-current term of this Agreement or
(ii) three (3) years from the date of said assignment or transfer, whichever
period is greater. Station acknowledges that any such assignment, sale or
transfer which does not so provide for such assumption and for NBC's right to
extend the term of this Agreement will cause NBC irreparable injury for which
damages are not an adequate remedy. Therefore, Station agrees that NBC shall
be entitled to seek an injunction or similar relief from any court of
competent jurisdiction restraining Station from committing any violation of
this Paragraph 16(b).
(c) Station agrees that if any application is made to the FCC
pertaining to an assignment or a transfer of control of Station's license, or
any interest therein, Station shall immediately notify NBC in writing of the
filing of such application. Except as to "short form" assignments or
transfers of control made pursuant to Section 73.3540(f) of the current FCC
Rules, NBC shall have the right to terminate this Agreement in the event of
any assignment or transfer. Station agrees that promptly following Station's
notice to NBC, Station (i) except in the case of "short form" assignments or
transfers of control, shall arrange for a meeting between NBC and the
proposed assignee or transferee to review the financial and operating plans of
the proposed assignee or transferee, and (ii) shall procure and deliver to
NBC, in form satisfactory to NBC, the agreement of the proposed assignee or
transferee that, upon consummation of the assignment or transfer of control
of the Station's license, the assignee or transferee will assume and perform
this Agreement in its entirety without limitation of any kind. If Station
complies with its obligations set forth in the preceding sentence and NBC
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does not terminate this Agreement upon written notice to Station within the
thirty (30) day period following the later of the meeting with the proposed
assignee or transferee or the delivery to NBC of a satisfactory assumption
agreement, NBC shall be deemed to have consented to the assignment or
transfer of control.
(d) NBC agrees that in the event of a sale or transfer of all or
substantially all of the assets or business of NBC (whether structured as a
sale or transfer of equity or assets of NBC), NBC agrees to assign this
Agreement to the purchaser or transferee and to cause such purchaser or
transferee to assume NBC's obligations hereunder; provided that the foregoing
agreement shall not apply in the event that this Agreement becomes an
obligation of such purchaser or transferee by operation of law. Upon such
assignment and assumption, NBC shall have no liability to Station under this
Agreement with respect to obligations arising after the effective date of
such assignment and assumption.
17. UNAUTHORIZED COPYING AND TRANSMISSION. Station shall not
authorize, cause, or permit, without NBC's consent, any program or other
material furnished to Station hereunder to be recorded, duplicated,
rebroadcast or otherwise transmitted or used for any purpose other than
broadcasting by Station as provided herein. Notwithstanding the foregoing,
Station shall not be restricted in the exercise of its signal carriage rights
pursuant to any applicable rule or regulation of the FCC with respect to
retransmission of its broadcast signal by any cable system or multichannel
video program distributor ("MVPD"), as defined in Section 76.64(d) of the FCC
Rules, which (a) is located within the Area of Dominant Influence ("ADI"), as
defined by Arbitron, in which Station is located, or (b) was actually
carrying Station's signal as of April 1, 1993, or (c) with respect to cable
systems, serving an area in which Station is "significantly viewed" (as
determined by the FCC) as of April 1, 1993; provided, however, that any such
exercise pursuant to FCC Rules with respect to NBC programs shall not be
deemed to constitute a license by NBC; and PROVIDED, FURTHER, that at such
time as NBC adopts a term in substitution for the term "ADI" by reason of any
similar action by the FCC or other appropriate authority, such substitute
term shall replace the references to "ADI" herein. NBC reserves the right to
restrict such signal carriage with respect to NBC programming in the event of
a change in applicable law, rule or regulation.
18. LIMITATIONS ON RETRANSMISSION CONSENT. In consideration of the
grant by NBC to Station of the non-duplication protection provided in the
most recent amendment to this Agreement, Station hereby agrees as follows:
(a) Station shall not grant consent to the retransmission of its
broadcast signal by any cable television
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system, or, except as provided in Paragraph 18(b) below, to any other MVPD
whose carriage of broadcast signals requires retransmission consent, if such
cable system or MVPD is located outside the ADI to which Station is assigned,
unless Station's signal was actually carried by such cable system or MVPD as
of April 1, 1993, or, with respect to such cable system, is "significantly
viewed" (as determined by the FCC) as of April 1, 1993; provided, however,
that at each renewal of this Agreement, in the event Station can demonstrate
to NBC that it is "significantly viewed" (as determined by the FCC) in areas
in addition to those in which it was "significantly viewed" as of April 1,
1993 ("Additional Viewing Areas"), NBC agrees that it will negotiate in good
faith with Station regarding a possible extension of Station's grant of the
right to retransmit its broadcast signal to cable systems in the Additional
Viewing Areas.
(b) Station shall not grant consent to the retransmission of its
broadcast signal by any MVPD that provides such signal to any home satellite
dish user, unless such user is located within Station's own ADI or is an
"unserved household" as defined in Section 119(d) or any successor provision
of Title 17 of the United States Code.
19. REMEDIES FOR UNAUTHORIZED COPYING AND TRANSMISSION. If Station
violates any of the provisions set forth in Paragraphs 17 and and 18 above,
NBC may, in addition to any other of its rights or remedies at law or in
equity under this Agreement or any amendment thereto, terminate this
Agreement by written notice to Station given at least ninety (90) days prior
to the effective date of such termination.
20. "BRANDING" PLAN. NBC agrees to work with the Station to "brand"
the Station as an "NBC Station" in the Station's market through cooperative
efforts in areas such as on-air promotion, unified graphic design, use of the
NBC peacock logo and NBC identification. In connection with such efforts,
NBC will make available to the Station the expertise of the NBC Advertising
and Promotion department and appropriate access to NBC research. Station
agrees to work with NBC to establish a mutually acceptable Branding Plan that
preserves the Station's image as the local news leader in Station's Market
while incorporating the use of the NBC Peacock logo in Station's
identification.
21. HDTV CONVERSION. Station acknowledges that its obligations
hereunder shall extend to any additional spectrum allocated to Station or any
of its affiliated entities and utilized for advanced or high definition
television transmissions on a simulcast basis with Station's current NTSC
channel. Without limiting the generality of any other provision hereof, in
the event that Station or any of its affiliated entities transmits an
advanced/high definition television ("ATV") signal
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in Station's community of license, Station agrees that, to the extent that
NBC provides an ATV feed containing NBC programming otherwise provided to
Station hereunder, Station shall transmit or cause the transmission of NBC
programming contained in such ATV feed in a manner consistent with Station's
clearance obligations hereunder. It is the parties intention that such NBC
programming contained in such feed shall be transmitted on the ATV channel
allocated to Station (or an affiliated entity) on a "paired" basis with
Station's current NTSC channel; notwithstanding the foregoing, Station agrees
that, in any event, NBC programming in an ATV feed shall be transmitted on
the ATV channel which transmits the preponderance of Station's locally
produced programming (including news) and syndicated programming that is
transmitted on Station's NTSC channel and is also available in an ATV format.
To the extent that Station is not transmitting an ATV signal, NBC shall be
permitted to offer NBC programming in an ATV format to any licensee
transmitting an ATV signal in Station's community of license without
complying with the provisions of Paragraphs 2(b), 2(c) or 14 hereof. The
foregoing commitments are conditioned upon the promulgation of FCC
regulations authorizing ATV transmissions (the "ATV Rules") which are not
inconsistent with such commitments as they relate to ATV transmission; in the
event that the foregoing commitments are prohibited by or are otherwise
inconsistent with the ATV Rules, the parties agree to negotiate in good faith
as to mutually acceptable substitute or modified provisions which provide for
the ATV transmission of NBC programming within Station's community of license.
22. APPLICABLE LAW. The obligations of Station and NBC under this
Agreement are subject to all applicable federal, state, and local laws, rules
and regulations (including, but not limited to, the Communications Act of
1934, as amended, and the rules and regulations of the FCC), and this
Agreement and all matters or issues collateral thereto shall be governed by
the law of the State of New York applicable to contracts negotiated, executed
and performed entirely therein (without regard to principles of conflicts of
laws).
23. WAIVER. A waiver by either of the parties hereto of a breach of
any provision of this Agreement shall not be deemed to constitute a waiver of
any preceding or subsequent breach of the same provision or any other
provision hereof.
24. NOTICES. Any notices hereunder shall be in writing and shall be
given by personal delivery, overnight courier service, or registered or
certified mail, addressed to the respective addresses set forth on the first
page of this Agreement or at such other address or addresses as may be
specified in writing by the party to whom the notice is given. Such notices
shall be deemed given when personally delivered, delivered to an overnight
courier service or mailed, except that notice of change of address shall be
effective only from the date of its receipt.
-15-
25. CAPTIONS. The captions of the paragraphs in this Agreement are for
convenience only and shall not in any way affect the interpretation hereof.
26. ENTIRE AGREEMENT. The foregoing constitutes the entire agreement
between Station and NBC with respect to the subject matter hereof, all prior
understandings being merged herein, except for the most recent amendment with
respect to network non-duplication protection under FCC Rules Section 76.92.
This Agreement may not be changed, modified, renewed, extended or discharged,
except as specifically provided herein or by an agreement in writing signed
by the parties hereto.
27. CONFIDENTIALITY. The parties agree to use their best efforts to
preserve the confidentiality of this Agreement and of the terms and
conditions set forth herein, and the exhibits annexed hereto, to the fullest
extent permissible by law. The parties recognize that Section 73.3613 of the
FCC's Rules and Regulations requires the filing with the FCC of television
network affiliation agreements by each affiliate, but are unaware of any
requirement for the filing of exhibits annexed to such affiliation
agreements. In the event that the FCC should request either party to file
said exhibits, that party shall give prompt notice to the other, and shall
submit said exhibits to the FCC with a request that said exhibits be withheld
from public inspection pursuant to Section 0.459 of the FCC's Rules and
Regulations on the grounds that said exhibits contain confidential commercial
or financial information that would customarily be guarded from competitors
and not be released to the public.
28. COUNTERPARTS. This Agreement may be signed in any number of
counterparts with the same effect as if the signature to each such
counterpart were upon the same instrument.
-16-
If the foregoing is in accordance with your understanding, please
indicate your acceptance on the copy of this Agreement enclosed for that
purpose and return that copy to NBC.
Very truly yours,
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
AGREED:
XXXXX BROADCASTING CORPORATION
By: /s/ Xxxxx X. Xxxx
-------------------------------
Xxxxx X. Xxxx, Treasurer
WEAU LICENSE, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------
Xxxxx X. Xxxx, V.P. - CFO
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